[2015] KEELRC 1350 (KLR)
The court found that the claimant was entitled to payment for 125 days of accrued annual leave, as the respondent's deposit to the Labour Office did not satisfy the full entitlement. The claimant was also entitled to service pay for two years, as there was no evidence of exclusion by law or pension scheme. The court...
Source-derived case information.
- Citation
- [2015] KEELRC 1350 (KLR)
- Parties
- Claimant: Salima Hassan Kombo; Respondent: Hotel Sapphire Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Cause 11 of 2013
- Procedural Posture
- Employment Claim / Final Award
- Outcome
- claim_partly_allowed
- Legal Topics
- Terminal Benefits, Annual Leave Pay, Service Pay, Certificate of Service, Unfair Labour Practice
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Salima Hassan Kombo
Claimant
Hotel Sapphire Limited
Respondent
Procedural Posture
Employment Claim / Final Award
Legal Issues
- 1 Whether the claimant was entitled to payment for accrued annual leave days.
- 2 Whether the claimant was entitled to service pay for the period worked.
- 3 Whether the respondent's treatment of the claimant amounted to unfair labour practice in violation of Article 41 of the Constitution.
Ratio Decidendi
The court found that the claimant was entitled to payment for 125 days of accrued annual leave, as the respondent's deposit to the Labour Office did not satisfy the full entitlement. The claimant was also entitled to service pay for two years, as there was no evidence of exclusion by law or pension scheme. The court held that the claimant was entitled to 16 days' salary and house allowance for December 2012. The respondent was ordered to issue a certificate of service as required by law. The court declared that the respondent's treatment of the claimant amounted to unfair labour practice in violation of Article 41 of the Constitution. No order was made on costs or interest, following the...
Court Disposition
claim_partly_allowed
Orders
- It is declared the respondent's treatment of the claimant amounted to unfair labour practice and violated Article 41 of the Constitution of Kenya.
- The respondent shall pay to the claimant annual leave pay at Kshs.47,427.90; service pay at Kshs.11,382; and 16 days' salary and house allowance at Kshs.6,070, totaling Kshs.64,879.
Full Case Text
Judgment text and source record
40 paragraphs
REPUBLIC OF KENYA
IN THE INDUSTRIAL COURT OF KENYA
AT MOMBASA
CAUSE NUMBER 11 OF 2013
BETWEEN
SALIMA HASSAN KOMBO ................................................................. CLAIMANT
VERSUS
HOTEL SAPPHIRE LIMITED ….................................................... RESPONDENT
Rika J.
Court Assistant – Mr. Kombe
Mr. Olewe instructed by Mbugua Mureithi & Company Advocates for the Claimant
Mr. Ojode instructed by Ojode Udoto & Onjoro Advocates for the Respondent
-----------------------------------------------------------------------------------------------------------------------------
ISSUE IN DISPUTE: TERMINAL BENEFITS
AWARD
(Rule 27(1) (a) of the Industrial Court (Procedure) Rules 2010)
1. The facts in this dispute are similar in main, to the Industrial Court at Mombasa, Cause No. 9 of 2013, between Lennox Ndume Misunga v. Hotel Sapphire Limited.
2. Although the Claimants, gave evidence separately, the Witness for the Respondent in Misunga, Francis Furaha Thoya, gave evidence answering all the Claims.
3. There are common prayers sought in these series of Claims, registered as Cause No. 9 to Cause No. 14, all of 2013.
4. In this Claim the Court, guided by the determination in Cause No. 9 of 2013, Finds and Awards:-
(a) The Claimant was employed by the Respondent as a Room Steward effective from 12th September 2005, earning Kshs.9,865 per month.
(b) She was advised by the Respondent on 1st November 2012, that she had 152 days of accrued annual leave.
(c) She was to proceed on annual leave on 15th November 2012 to resume on 14th December 2012. The Leave Schedule prepared by the Respondent showed she would take 27 days of annual leave, leaving a total balance of 125 days.
(d) She resigned voluntarily while on leave, on 16th November 2012 leading her Employer to revise down, her outstanding annual leave days.
(e) The deposit of Kshs.20,044 made by the Respondent to the Labour Office on account of the Claimant's outstanding leave, did not satisfy her outstanding annual leave entitlement.
(f) The Claimant is granted 125 days of annual leave pay at Kshs.9,865 ÷26 working days=Kshs.379. 40 x 125 days = Kshs.47,427. 90.
(g) She merits service pay for the period between 12th September 2005 to 12th September 2007- a period of 2 years. Service pay is granted at Kshs.9,865÷26 working days – Kshs.379. 40 x 15 days = Kshs.5,691. 34 x 2 years = Kshs.11,382.
(h) The Claimant is granted16 days' salary and house allowance for December 2012 at Kshs.379. 40 x 16=Kshs.6,070.
(I) The Respondent shall release to the Claimant her Certificate of Service forthwith, as required under Section 51 of the Employment Act 2007.
(j) It is declared the Respondent's treatment of the Claimant amounted to unfair labour practice, and violated Article 41 of the Constitution of Kenya.
(k) For reasons given in Misunga, there shall be no order on costs and interest.
In Sum, IT IS ORDERED:-
(i) It is declared the Respondent's treatment of the Claimant amounted to unfair labour practice, and was in violation of Article 41 of the Constitution of Kenya.
(ii) The Respondent shall pay to the Claimant annual leave pay at Kshs.47,427. 90; service pay at Kshs.11,382; 16 days' salary and house allowance at Kshs.6,070 – total Kshs.64,879.
(iii) The Respondent shall release to the Claimant his Certificate of Service forthwith.
(iv) The monetary award be satisfied within 21 days of the delivery of this Award.
(v) Parties to meet their own costs, and no order on interest.
Dated and Delivered at Mombasa this 6th day of March 2015.
James Rika
Judge